Malaysia: Revoke Law Banning Same-Sex Sexual Relations

(New York) – The Malaysian government should revoke its colonial-era law criminalizing consensual sexual acts between people of the same sex, Human Rights Watch said today. The authorities should drop their criminal case alleging consensual “sodomy” against opposition leader and former deputy prime minister Anwar Ibrahim, who is awaiting the verdict in his trial that began in February 2010.

“The Malaysian government uses its outdated sodomy law to slander political opponents and critics,” said Phil Robertson, deputy Asia director at Human Rights Watch. “Whether or not Anwar Ibrahim engaged in consensual ‘sodomy’ is irrelevant. It’s time to reject this law and end the farcical political theater that promotes discrimination based on sexual orientation and destroys people’s lives.”

On June 28, 2008, Mohd Saiful Bukhari Azlan, then a 23-year-old aide to Anwar, filed a police complaint accusing Anwar of having forcibly sodomizing him two days earlier. The charges were later changed to consensual sodomy, after the authorities determined that Anwar, a 60-year-old with a bad back, was physically incapable of compelling the young man to engage in acts against his will. The complainant avoided being charged because he had reported the incident and asserted he needed protection.

Anwar is being tried under section 377 of the Malaysian penal code, which prohibits “carnal intercourse against the order of nature.” This so-called sodomy law is a relic of British colonial rule dating back to the mid-19th century. Conviction could result in a sentence of up to 20 years in prison. Leading members of the Commonwealth of Nations, to which Malaysia belongs, called for the abolition of sodomy laws during the recently concluded summit meeting in Brisbane, Australia.

As a member of the United Nations Human Rights Council, Malaysia has agreed to “uphold the highest standards in the promotion and protection of human rights.” Revoking the sodomy law would be consistent with Malaysia’s undertakings as a Human Rights Council member, Human Rights Watch said.

In 1994, the Human Rights Committee, the UN body of experts that monitors civil and political rights, held that sodomy laws violate the right to privacy and non-discrimination. The Yogyakarta Principles, a set of international legal principles on the application of international law to human rights violations based on sexual orientation and gender identity, call on states to, “Repeal all laws that criminalize consensual sexual activity among persons of the same sex who are over the age of consent.” A November 2011 report by the UN high commissioner for human rights, which will be presented to the Human Rights Council in March 2012, recommended that UN member states “repeal laws used to criminalize individuals on grounds of homosexuality for engaging in consensual same-sex sexual conduct.”

Appeals to cultural or social exceptionalism do not overrule international human rights standards. The Vienna Declaration and Programme of Action, which was adopted by consensus at the World Conference on Human Rights in 1993, provides that, “It is the duty of States, regardless of their political, economic and cultural systems to promote and protect all human rights and fundamental freedoms.” In his 2010 Human Rights Day statement, UN Secretary-General Ban Ki-moon rejected discrimination based on sexual orientation and gender identity and said that, “Where there is a tension between cultural attitudes and universal human rights, rights must carry the day.”

This is the second time Anwar Ibrahim has been arrested on allegations of sodomy. His previous trial for sodomy, which resulted in a conviction in 2000 and a nine-year prison sentence, was marred by rights violations throughout. Upon being arrested on September 20, 1998, Anwar was beaten by the police chief at that time, resulting in severe facial injuries. Due process violations included lack of access to legal counsel; witness intimidation; harassment of his lawyers; and major problems with the prosecution’s evidence. The conviction was overturned in 2004.

“Laws punishing consensual sexual relations between adults of the same sex are an unjustifiable invasion of the rights to privacy and personal security,” Robertson said. “They foster a climate in which discrimination and abuse takes place. These rights cannot be willed away by selective appeals to cultural tradition and religious belief.”